The Most Important Things To Know About Redistricting

Michael CrowellOctober 01, 2000

1. One-person/one-vote applies to any board that uses districts for electing members.

One-person/one-vote applies to local governments that use election districts, i.e., that restrict voting for one or more seats to citizens who live in a particular district. Avery v. Midland County, 390 US 474 (1968).

Although it is difficult to maintain up-to-date information, it appears that the following boards use election districts to elect some or all members:

Apportionment is based on total census population according to the most recent federal census. Reynolds v. Sims, 377 US 533 (1964). Military personnel are included. Davis v. Mann, 377 US 678 (1964). Nonresident aliens should be excluded. WMCA, Inc. v. Lomenzo, 377 US 633 (1964).

The 2000 census was taken in April 2000. Total state population data will be reported by 12/31/00. The data needed for redistricting – “P.L. 94-171 data” showing the number of people by race by census block – is supposed to be provided by the Census Bureau by 4/1/01.

4. The board is responsible for drawing the new district lines.

GS 153A-23(b) authorizes boards of county commissioners to draw new election districts after each federal census, if needed to comply with one-person/one-vote. GS 115C-37(i) contains the same authorization for school boards, and GS 160A-23.1 for city councils. None of those statutes otherwise says anything about the procedure to be followed, except that a board of commissioners must make a finding that there is a “substantial inequality” in population among existing districts. For county commissioners, school boards and city councils, the new lines may be set by adoption of a resolution. City councils also have the option of putting the new districts in the form of an ordinance, and should use that form if that is how present districts are defined. For none of the boards is there a requirement for a public hearing, but it is advisable.

5. The rule of thumb for local government apportionment is an overall population deviation of no more than ten percent.

Election districts do not have to be absolutely equal in population. The accepted rule for local governments is that there should be no more than a ten percent difference between the most and least populous districts. White v. Regester, 412 US 755 (1973); Gaffney v. Cummings, 412 US 735 (1973).

Remember that if the 2000 census shows that the existing districts already are within the ten percent overall deviation range, there is no need to redistrict.

6. Districts must not be drawn to discriminate against minority voters and thereby deny them an equal opportunity to elect candidates of their choice.

The Fifteenth Amendment prohibits the drawing of election districts for the purpose of discriminating against minorities. Section 2 of the federal Voting Rights Act prohibits any election method which has the effect of denying minority voters an equal opportunity to elect candidates of their choice. 42 USC § 1973; Thornburg v. Gingles, 478 US 30 (1986). The requirements of Section 2 have been complicated significantly by the Shaw line of cases on racial gerrymandering, however (see below).

7. If the board is located in one of the 40 counties in North Carolina covered by Section 5 of the Voting Rights Act, the redistricting plan must be precleared by the United States Attorney General before it may be used.

The test for preclearance is whether the redistricting plan is retrogressive, i.e., whether it makes it harder than before for minority voters to elect candidates of their choice. Beer v. United States, 425 US 130 (1976); City of Lockhart v. United States, 460 US 125 (1983).

Remember that a redistricting plan also may be precleared by the United States District Court for the District of Columbia. This option is available even if the Attorney General has denied preclearance.

Also remember that counties covered by Section 5 should consider whether to seek to remove themselves from the preclearance requirement through the “bail-out” provisions of 42 USC § 1973b. The principal requirement for bail-out is that the county and all political subdivisions within it have a clean record of submissions and no Voting Rights Act violations for the last ten years.

8. If the board uses partisan elections, the districts may not be drawn to effectively shut out one political party.

All boards of county commissioners use partisan elections, and some city councils do, but most school boards do not. The rule against partisan gerrymanders was set by Davis v. Bandemer, 478 US 109 (1986), but has generated hardly any cases.

9. Racial gerrymandering is unconstitutional unless justified by a compelling state interest.

This is the other half of the “damned if you do, damned if you don’t” equation created by the conflict between the requirement of the Voting Rights Act to provide opportunities for minority representation and the constitutional suspicion of racial classifications.

Shaw v. Reno, 509 US 630 (1993) (Shaw I), held that all laws classifying citizens by race are constitutinally suspect and are subject to strict scrutiny. When race is the predominate motivation in drawing election districts, the state must show a compelling reason for doing so. The highly irregular shape of a district may be used to show that race was the principal motivation.

Compliance with Section 2 of the Voting Rights Act may be a compelling reason for racially gerrymandering election districts, but Section 2 does not require creation of the maximum number of majority black districts possible, nor does it require the creation of districts that are not geographically compact. Johnson v. DeGrandy, 512 US 997 (1994).

Attempting to comply with the US Justice Department’s incorrect view of Section 5 of the Voting Rights Act by drawing as many majority black districts as necessary to get a redistricting plan precleared is not a compelling interest justifying a racial gerrymander. Miller v. Johnson, 515 US 900 (1995).

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